The Joint Council for the Welfare of Immigrants v The President of the Upper Tribunal (Immigration and Asylum Chamber)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 20 November 2020 |
| Neutral Citation | [2020] EWHC 3103 (Admin) |
| Docket Number | Case No: CO/2197/2020 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 November 2020 |
[2020] EWHC 3103 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Fordham
Case No: CO/2197/2020
and
Charlotte Kilroy QC, Naina Patel, Jennifer MacLeod and Rachel Jones (instructed by Freshfields Bruckhaus Deringer LLP) for the Claimant
Richard O'Brien and Jack Holborn (instructed by Government Legal Department) for the Defendant
The Interested Party did not appear and was not represented
Hearing dates: 21 st and 22 nd October 2020
FINAL JUDGMENT
Part 1. Introduction
This judicial review case is about oral hearings and paper determinations in substantive appeals dealt with by the Upper Tribunal (Immigration and Asylum Chamber) (UTIAC) during the COVID-19 pandemic. The Claimant challenges as unlawful the President's Guidance Note (PGN) (§3.8 below) issued by the Defendant pursuant to a statutory power (§2.4(2) below) on 23 March 2020. Permission for judicial review was granted by Steyn J on two grounds (§1.2 below). She refused permission of the PGN on a number of other grounds and she refused permission for judicial review of the Pilot Practice Direction (PPD) issued by the Senior President of Tribunals (SPT) on 19 March 2020 (§3.8 below). The Lord Chancellor, initially named as a Defendant, became an Interested Party in these proceedings and made no submissions at the substantive hearing. This case involved a two-day remote hearing by Microsoft Teams. That was the parties' preference. They were satisfied, as was I, that this mode of hearing involved no prejudice to their interests. This was a public hearing and the open justice principle was secured: the case and its start time were published in the cause list with an email address usable by any member of the press or public who wished to observe, as many did. We eliminated the risk to any person in having to travel to or be present in a Court room. I am satisfied that the mode of hearing was necessary, appropriate and proportionate.
Grounds for Judicial Review
The two grounds on which permission for judicial review was granted by Steyn J, in their essence, come to this (the encapsulation is mine, based on the key sections within the grounds for judicial review):
Ground (1). In communicating an ‘overall paper norm’ (a ‘usual’ position whereby UTIAC substantive appeals will be determined on the papers), the PGN is ultra vires because: (a) this is a ‘radical’ change in practice (which only the Tribunal Procedure Committee could effect); and/or (b) this is a position incompatible with common law principles (engaging the principle of legality); and/or (c) it is a position inconsistent with the policy and objects of the statutory scheme .
Ground (2). The PGN is contrary to common law principles – with the consequence that (i) it is erroneous in law and/or (ii) it would, if followed, lead to, permit or encourage unlawful acts – because: (a) it communicated an ‘overall paper norm’; and/or (b) it stated that “the outcome of the appeal is of importance to a party (or another person) will not, without more, constitute a reason to convene a hearing”; and/or (c) it stated in relation to issues of law that ‘particular’ rather than ‘ordinary’ complexity is required as a reason to convene an oral hearing; and/or (d) it made ‘no mention of a number of other relevant factors, including the right to an oral hearing as an aspect of procedural fairness, the importance of participation in the process, the power of oral argument in an adversarial system, in particular the ability to respond to the points troubling the decision maker and the importance of open justice as well as the need for the highest standards of fairness in asylum and immigration appeals’ .
Grounds (1)(a)-(c) and Ground (2)(a) are answered in Parts 4–6 of this judgment. Grounds (2)(b)-(d) are answered in Part 7 read in the light of Part 6. There is a lot to explain and synthesise and I will use internal cross-references to promote easier navigability.
The Key Question, an Agreed Consequence and an Explanation
The following question is at the heart of this case (I answer it in Part 4):
Key Question. Does the PGN, read objectively and as a whole, communicate to its audience of UTIAC Judges an ‘overall paper norm’ for determining UTIAC substantive appeals during the pandemic?
It was common ground before me that if – which is hotly disputed – the answer to the Key Question is ‘yes’, then it would follow that the PGN is unlawful (§5.15 below). In my judgment, the Defendant is right to accept that this would be the consequence. But it is important to identify why. I will do this in Parts 5 and 6. In my judgment, the correct explanation comes to this:
Explanation. An overall paper norm for UTIAC substantive appeals would be inconsistent with the overriding objective – and the basic requirements of common law procedural fairness which must inform the overriding objective. That makes it unlawful for the PGN to communicate an overall paper norm, in circumstances where: (i) the PGN was describing the effect for UTIAC substantive appeals of a contingent paper norm directed by the PPD; and (ii) that contingent paper norm included a proviso which gave primacy to the overriding objective .
This judgment therefore comes with a lexicon. I will explain “overall paper norm” (§2.13 below); “contingent norm”, “proviso” (§2.14 below) and “contingent paper norm” (§3.3 below); and why I use the word “describing” (§2.4(2) below). I will discuss the “overriding objective” (§2.6 below) and the “basic requirements of common law procedural fairness” (§2.2 below).
The Claimant, the Defendant and the SSHD
The Claimant is an independent national charity founded in 1967 which campaigns for justice in immigration, nationality and refugee law and policy. Evidence before this Court from its Legal Director Nicola Burgess explains, and illustrates, its long history in litigating and intervening before the domestic courts, in cases where it sees a wider public interest in doing so. The Claimant acts in this case (the clue is in the name) to protect the interests of those individuals and families involved in UTIAC substantive appeals. The Claimant's standing to bring this claim was not contested. The Defendant is the President of UTIAC and was acting in that capacity when issuing the PGN. He is also a High Court Judge. It is common ground that the PGN is susceptible to judicial review and that the issues whose resolution will determine whether judicial review succeeds raise objective questions of law which it is for this Court to decide. Substantive UTIAC appeals involve individuals and families on the one side and the Secretary of State for the Home Department (SSHD) on the other. The appeal will be against a decision of the First-Tier Tribunal (FTT) where the FTT judge has found in favour of one side or the other. That means the SSHD also has an obvious interest in the mode of hearing adopted in UTIAC substantive appeals. I asked the parties about the SSHD's position in these proceedings. I was told, by Counsel on both sides, that I could ‘take it that the SSHD is well aware of these proceedings’.
Part 2. Contextual Reference Points
Before I come on to the PPD and the PGN (Part 3) and then proceed to analyse the two grounds for judicial review (Parts 4–7), I will lay some groundwork, much of which was common ground. It involves identifying and explaining some contextual reference points which are prominent features for understanding this case. If this case is a jigsaw, then these contextual reference points are corner pieces and straight edge pieces, and those pieces are always a good place to start.
Basic Requirements of Common Law Procedural Fairness
As Lord Steyn explained in R v SSHD, ex p Pierson [1998] AC 539 at 591F: “the rule of law enforces minimum standards of fairness, both substantive and procedural”. As Lord Dyson explained in Al Rawi v Security Service [2011] UKSC 34 [2012] 1 AC 531 at paragraph 22, the “parties” to proceedings have a “fundamental common law right to participate in the proceedings in accordance with the common law principles of natural justice and open justice”. The basic requirements of common law procedural fairness engage the principle of legality (§2.9 below). They inform the overriding objective (§2.6 below). They are at the heart of the Explanation as to the Agreed Consequence if the answer to the Key Question is ‘yes’ (§1.3 above).
Contextual Application of Common Law Procedural Fairness
The basic requirements of common law procedural fairness are flexible and contextual in their application. In Lloyd v McMahon [1987] AC 625, Lord Bridge expressed that point in the following way (at 702H): “the so-called rules of natural justice are not engraved on tablets of stone… What the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates”. As Lord Mustill put it in R v SSHD, ex p Doody [1994] 1 AC 531 at 560D-G: “The standards of fairness are not immutable. They...
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